RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03391
            INDEX CODE 126.04, 126.02
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 8 Jul 94 be removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was on his way to being promoted to senior master sergeant  (SMSgt)
but his then wife accused him of unfounded crimes so she could get rid
of him and be with another man.  He did not disobey the commander’s no-
contact order; his wife was the one who approached him at the NCO club
and then told the commander about the contact.  He was not responsible
for others’ actions in a public place or unintentional meetings.   His
commander had an agenda to frame him for disobeying  a  lawful  order.
His incompetent counsel advised him to accept the Article 15  and  not
appeal it.  To be permanently reduced  in  rank  for  such  a  trivial
matter is more punishment than he  deserved.   He  continues  to  lose
money until 2009 when he regains the grade of master sergeant  (MSgt).
He suffered a mental breakdown and has been under mental  health  care
since 1996.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 23 Aug 79.   During
the period in question, the applicant was a MSgt assigned to the  17th
Special Operations  Squadron  (17SOS)  at  Kadena  AB,  Japan,  as  an
airborne communications systems operator/flight superintendent.

On 17 Jun 94, the commander ordered the applicant not to  contact  his
then wife without permission.

On 8 Jul 94, the commander imposed Article 15 punishment in  the  form
of reduction in grade from  MSgt  to  technical  sergeant  (TSgt)  and
reprimand for failing to obey  the  17  Jun  94  order  by  wrongfully
meeting his wife on numerous occasions without permission between,  on
or about 17 and 18 Jun 94, at or near  Kadena  AB.   After  consulting
counsel, the applicant waived his right to trial by court-martial, did
not request a personal appearance but had made a written presentation.
 The applicant did not appeal the  punishment.   The  Article  15  was
found legally sufficient and  filed  in  the  applicant’s  Unfavorable
Information File (UIF).

On 14 Jul 94, the applicant was advised of the commander’s  intent  to
file the Article 15 in his Senior NCO Selection  Record  (SNSR).   The
applicant acknowledged receipt but did not attach  correspondence  for
consideration.  On 18 Jul 94, the commander determined the Article  15
should be filed in the applicant’s SNSR.

Congress had  authorized  The  Temporary  Early  Retirement  Authority
(TERA) on 23 Oct 92.  The applicant applied for early retirement under
the provisions of TERA and, by Special Order No.  AC-000989  dated  21
Oct 94, the applicant was approved to be retired effective  1 Jan  95,
in the grade of TSgt, and assigned to the Retired Reserve until 18 May
09, after 15 years, 4 months and 8 days of active service.

Special Order No. AC-001627, dated 31 Oct 94,  amended  Special  Order
No. AC-000989 to add that under  the  provisions  of  Title  10,  USC,
Sections 8964 and 8992, effective 23 Aug 09, the  applicant  would  be
advanced to the grade of MSgt on the USAF Retired List  by  reason  of
completing a total of 30 years of active service, plus service on  the
Retired List, on 22 Aug 09.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM notes the applicant did not apply  for  relief  until  more
than 10 years after his nonjudicial punishment.  Further, his case  is
not one for set aside.  The appeal does not cast any genuine doubt  on
the applicant’s guilt.  He presents no facts indicating his  commander
unreasonably found the applicant failed to obey the no-contact  order.
While the applicant contends his wife initiated  the  contact  between
them  on  17  Jun  94,  the  allegation  underlying  the   nonjudicial
punishment was that on numerous instances after 17 Jun 04,  which  was
the date of the order, the applicant disobeyed the order by making in-
person contact with his wife.  Thus, his contention, even if accepted,
does not undermine the finding of his guilt.  Despite the  applicant’s
contentions that the punishment was inequitable  or  disproportionably
harsh,  nonjudicial  punishment  was  a  reasonable  and   appropriate
response to the applicant’s failure to obey the
order and the reduction in grade was well within the legal limits  and
commensurate with the nature of the offense.  Accordingly,  denial  is
recommended.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 7 Jan 05 for review and comment within 30  days.   As  of
this date, this office has received no response.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. After a thorough  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded the 9 Jul 94 Article 15 should be removed from his  records.
The applicant’s contentions are duly noted; however, we  do  not  find
these uncorroborated assertions, in and  by  themselves,  sufficiently
persuasive to override  the  evidence  of  record  and  the  rationale
provided by the Air Force.  The underlying allegation of  the  Article
15 was that he disobeyed the no-contact order on  numerous  occasions,
not just on 17 Jun 94.  The applicant  has  not  demonstrated  to  our
satisfaction that the  nonjudicial  punishment  was  improper,  unduly
harsh, or beyond the commander’s discretionary authority.  We note the
applicant will resume his grade of  MSgt  on  22  Aug  09,  under  the
provisions of Title 10, Sections 8964  and  8992,  and  we  find  this
sufficient remedy.  We therefore agree with the recommendations of the
Air Force and adopt the rationale  expressed  as  the  basis  for  our
decision that the applicant has not sustained  his  burden  of  having
suffered either an error or an injustice.  In view of  the  above  and
absent persuasive evidence to the  contrary,  we  find  no  compelling
basis to recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal appearance; and
that the application will only be reconsidered upon the submission  of
newly  discovered  relevant  evidence   not   considered   with   this
application.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 3 March 2005 under the provisions of AFI 36-2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Mr. John B. Hennessey, Member
                 Ms. Jean A. Reynolds, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-03391 was considered:

   Exhibit A.  DD Form 149, dated 26 Oct 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 27 Dec 04.
   Exhibit D.  Letter, SAF/MRBR, dated 7 Jan 05.





                                   WAYNE R. GRACIE
                                   Panel Chair